United States v. Leal–Vega

• Decision Date: 30 May 2012
• Docket Number: No. 11–50065.,11–50065.
• Parties: UNITED STATES of America, Plaintiff–Appellant, v. Jose David LEAL–VEGA, Defendant–Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

680 F.3d 1160

12 Cal. Daily Op. Serv. 5845

2012 Daily Journal D.A.R. 7079

UNITED STATES of America, Plaintiff–Appellant,

v.Jose David LEAL–VEGA, Defendant–Appellee.

No. 11–50065.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 11, 2012.

Filed May 30, 2012.

Peter William Baldwin, Curtis Arthur Kin, and Jean–Claude Andre (argued), Office of the United States Attorney, Los Angeles, CA, for plaintiff-appellant United States of America.

Carlton Gunn (argued), Kaye McLane & Bednarski, LLP, Pasadena, CA, for defendant-appellee Jose Leal–Vega.

Appeal from the United States District Court for the Central District of California, Philip S. Gutierrez, District Judge, Presiding. D.C. No. 2:10–CR–00756–PSG–1.

Before: ANDREW J. KLEINFELD and MILAN D. SMITH, JR., Circuit Judges, and ALGENON L. MARBLEY, District Judge.^*

OPINION

M. SMITH, Circuit Judge:

The United States of America (Government) appeals the thirty-months sentence imposed on Jose Leal–Vega for illegal reentry following deportation. The district court declined to apply a sixteen-level enhancement pursuant to United States Sentencing Guidelines, U.S.S.G. § 2L1.2, for Leal–Vega's prior conviction under California Health & Safety Code § 11351. The Government contends that the sixteen-level enhancement should have been applied because Section 11351 is categorically a “drug trafficking offense” under U.S.S.G. § 2L1.2. Alternatively, the Government contends that even if Section 11351 does not categorically qualify, Leal–Vega's conviction qualifies as a “drug trafficking offense” applying the modified categorical analysis because the substance involved was tar heroin, a substance covered by the federal Controlled Substances Act (CSA), 21 U.S.C. § 801 et seq.

We hold that a conviction under Section 11351 does not qualify categorically as a “drug trafficking offense” for the purposes of U.S.S.G. § 2L1.2. However, we hold that Leal–Vega's prior Section 11351 conviction qualifies as a “drug trafficking offense” using the modified categorical approach, and we reverse and remand for resentencing.

FACTUAL AND PROCEDURAL BACKGROUND

On March 3, 1999, Leal–Vega was charged in Count 1 of a felony complaint with “committ[ing] a violation of Health and Safety Code section 11351, a felony, in that on or about March 1, 1999, in the County of Riverside, State of California, [he] did wilfully and unlawfully possess for sale and purchase for purpose of sale a controlled substance, to wit, TAR HEROIN.” He was concurrently charged with another count. Leal–Vega pled guilty to Count 1, and the second count was dismissed.

On August 23, 2010, Leal–Vega pled guilty to illegal reentry following deportation, under 8 U.S.C. § 1326. The information charged Leal–Vega with a prior 1999 felony conviction for possession of a controlled substance for sale, in violation of California Health & Safety Code § 11351.

In the Presentence Report (PSR), the Probation Office recommended a sixteen-level enhancement based on the prior conviction, which it categorized as a “drug trafficking offense.” Leal–Vega objected to this categorization, arguing that Section 11351 is categorically broader than the Sentencing Guidelines's definition of a “drug trafficking offense.” After initially arguing that Section 11351 was a categorical fit, the Government later conceded that the statute was too broad. Prior to sentencing, the district court requested more information for the purpose of conducting the modified categorical analysis. The Government subsequently retracted its concession regarding the inapplicability of the categorical analysis to Section 11351, and claimed that since the Sentencing Guidelines do not incorporate the CSA's definition of “controlled substance,” Section 11351 is not overbroad, and that the statute is a categorical fit.

The district court concluded that Section 11351 was not categorically a “drug trafficking offense,” and also found that the record of conviction for Leal–Vega's 1999 conviction was insufficient to establish a modified categorical fit. Thus, the district court only applied a four-level sentence enhancement,¹ and imposed a sentence of thirty months imprisonment, based on a calculated Guidelines range of twenty-four to thirty months. The Government timely appealed.

JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction under 28 U.S.C. § 1291.

We review de novo the district court's interpretation of the Sentencing Guidelines. United States v. Cantrell, 433 F.3d 1269, 1279 (9th Cir.2006). We review the district court's application of the Sentencing Guidelines for abuse of discretion. Id.

DISCUSSION

The crime of unlawfully entering the United States under 8 U.S.C. § 1326 carries a base offense level of 8 under the Sentencing Guidelines. U.S.S.G. § 2L1.2; see United States v. Ballesteros–Ruiz, 319 F.3d 1101, 1102 (9th Cir.2003). A defendant's base offense level may be increased by sixteen levels if he has a prior conviction for a “drug trafficking offense,” and the sentence on the prior conviction exceeded thirteen months. U.S.S.G. § 2L1.2(b)(1)(A). The Sentencing Guidelines define “drug trafficking offense” as:

[A]n offense under federal, state, or local law that prohibits the manufacture, import, export, distribution, or dispensing of, or offer to sell a controlled substance (or a counterfeit substance) or the possession of a controlled substance.

Id.§ 2L1.2, Application Notes (1)(B)(iv) (emphasis added).

We apply the categorical and modified categorical approaches described in Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), to determine whether a defendant's prior conviction satisfies U.S.S.G. § 2L1.2(b)(1)(A). United States v. Pimentel–Flores, 339 F.3d 959, 968 (9th Cir.2003). We first apply the categorical analysis.Under this approach, we “do not examine the facts underlying the prior offense, but look only to the fact of conviction and the statutory definition of the prior offense.” Id. at 967(quoting United States v. Corona–Sanchez, 291 F.3d 1201, 1203 (9th Cir.2002) (en banc), superseded on other grounds by U.S.S.G. § 2L.1, CMT n. 4 (2002)). If the statutory definition of the prior offense criminalizes conduct that would not constitute a “drug trafficking offense,” then the statute is not a categorical fit, and we must consider whether the prior conviction may still be used for a sentencing enhancement using the modified categorical approach. Id. We may not use the conviction for a sentencing enhancement unless “the record includes documentation or judicially noticeable facts that clearly establish that the conviction is a predicate for enhancement purposes.” Id. (quoting Corona–Sanchez, 291 F.3d at 1203). Finally, if both the statute and the documents containing judicially noticeable facts would allow the defendant to be convicted of an offense that would not be a “drug trafficking offense,” then the sentencing enhancement may not be applied. See Corona–Sanchez, 291 F.3d at 1203–04.

The predicate offense here, California Health & Safety Code § 11351, criminalizes “possess[ion] for sale or purchases for purposes of sale (1) any controlled substance specified in subdivision (b), (c), or (e) of Section 11054, specified in paragraph (14), (15), or (20) of subdivision (d) of Section 11054, or specified in subdivision (b) or (c) of Section 11055, or specified in subdivision (h) of Section 11056, or (2) any controlled substance classified in Schedule III, IV, or V which is a narcotic drug.” Cal. Health & Safety Code § 11351.

I. Categorical Analysis

Applying the initial step in the Taylor analysis, we first determine whether Section 11351 categorically qualifies as a “drug trafficking offense,” as defined under the Sentencing Guidelines. In particular, we must determine how to interpret the term “controlled substance,” as it is used in the Sentencing Guidelines definition. If we construe the term as being tied to the federal definition of controlled substances from the CSA, Section 11351 cannot qualify categorically because it criminalizes possession or purchase of substances that are not included in the CSA. See infra. However, were we to adopt the definition of “controlled substance” urged by the Government—that it takes on its ordinary, common sense meaning, as a drug regulated by law—Section 11351 would automatically qualify categorically.

While we have not applied the Taylor categorical analysis to determine whether various California drug statutes would qualify as a “drug trafficking offense” in the Sentencing Guidelines context, we have found occasion to do so in the immigration framework. First, in Ruiz–Vidal v. Gonzales, 473 F.3d 1072 (9th Cir.2007), we held that California Health & Safety Code § 11377 could not serve as a predicate offense for removal under 8 U.S.C. § 1227(a). We stated that there was no categorical fit because “California law regulates the possession and sale of numerous substances that are not similarly regulated by the CSA.” Id. at 1078. Next, in Mielewczyk v. Holder, 575 F.3d 992, 995 (9th Cir.2009), we held that California Health & Safety Code § 11352 was categorically too broad, under 8 U.S.C. § 1227(a). We held the same in S–Yong v. Holder, 600 F.3d 1028, 1034 (9th Cir.2010), addressing California Health & Safety Code § 11379.

Were we to interpret “drug trafficking offense” in the sentencing context to be consistent with our interpretation in the immigration context, i.e., that its meaning is defined by the CSA, Section 11351 would be too broad to categorically qualify as a “drug trafficking offense.” The statute at issue in Mielewczyk,California Health & Safety Code § 11352(a), differs from Section 11351 only in that it includes cocaine base. CompareCal. Health & Safety Code § 11351(listing numerous subsections and subparagraphs of controlled substances schedule statutes) with id. § 11352(a) (listing same subsections and subparagraphs, with one addition, subparagraph (f)(1) of Section...